The petitioner, Edgar, acting warden of the state prison, asks .to he discharged upon habeas corpus. He has been adjudged guilty of a contempt of the superior court of San Diego county in not carrying out an order of that court directing the execution of one Ebanks, and is now restrained of his liberty. His defense to the alleged contempt is, that by virtue of certain proceedings had in the federal courts a stay of execution was created. These proceedings consisted in the presentation and filing of a petition for a writ of habeas corpus in behalf of Ebanks before the district court of the northern district of the state of California, a denial of the application for the writ by that court, and an appeal from said order of denial to the supreme court of the United States.
Do the proceedings in the federal courts result in a stay of the execution of the order of the state court commanding the warden to execute Ebanks? If such stay exists, it is by virtue of section 766 of the Revised Statutes of the United States, which it is claimed provides for a stay of proceedings pending an appeal from an order made by a district or circuit court refusing the issuance of a writ of habeas corpus. Conceding this statute has that effect in many cases, still I am not prepared to say that it has such effect in all cases; but, upon the contrary, I am clear that the appeal can only have such effect when the petition for the writ upon its face recites facts which invoke the jurisdiction of the federal court. In other words, .the petition must show that the person is restrained of his liberty in violation of the constitution of the United States, or a law or treaty thereof. It is only in that class of cases that the federal court has jurisdiction, and in such cases only that the state court may be ousted of jurisdiction. The state court loses no jurisdiction until the federal court takes jurisdiction, and the federal court can take no jurisdiction by inference or presumption. Affirmative jurisdictional facts must appear upon the face of the petition, or a federal court is powerless to render any decree. It follows that an appeal taken from an order of a federal court refusing the issuance of a writ of habeas corpus based upon a petition, showing no federal question, does not stay the hand of the state court, and the execution of its judgment, notwithstanding such an appeal, may be enforced in all appropriate ways.
*129It is the law of the land that state courts have the exclusive power and right to deal with state questions. Congress has no power to obstruct the ordinary administration of the criminal laws of the state courts. Such an attempt would be a gross trespass upon the sovereign power of the states of this Union, and would be so recognized by all judicial tribunals. The states have given no such power to Congress; and any attempt upon its part to declare that “an appeal from an order of a federal court refusing the issuance of a writ of habeas corpus, regardless of the issues raised by the petition, stays the execution of the judgment of the state court,” is unconstitutional and void. It necessarily follows,that to support the validity of the section of the Revised Statutes heretofore quoted, and give it force and effect, the construction must be maintained that it only applies where the petition for the writ raises a federal question.
It is argued that this construction of the law casts upon the warden of the state prison the grave responsibility of determine ing when the petition for the writ discloses the presence or absence of a federal question. So be it. All executive officers must at their peril decide important questions. In every capital case, when the moment arrives for carrying out the judgment of the court the warden must assume the great responsibility of determining whether or not a stay of execution is in force and effect. By virtue of the provisions of section 1243 of the Penal Code a certifícate of probable cause may be granted by a justice of this court in certain cases, which certificate has the effect, when filed, to stay the execution of the judgment. I am convinced that under this section a certificate of probable cause cannot issue upon an appeal from an order made after final judgment of conviction; and that a stay of the execution of such order could only be had by the issuance of a supersedeas from the appellate court. Yet this question of law and many others are matters which must be decided by the warden according to his lights whenever they face him, and the responsibility rests upon him of deciding them correctly.
Again, we have no conflict of jurisdiction in this case. It has been nowhere decided by a federal court that the petition of Ebanks for the writ disclosed a federal question. Ho federal court has yet decided that it has jurisdiction to hear and deter*130mine the matters raised by bis petition. The question is still an open one, and, being open, this court is entirely free to deal with it and declare the law as it believes it to be. To be sure, the question is a delicate one, but this court neither can nor should evade it for that reason. If there is a stay of the superior court’s order fixing the day for the execution of Ebanks, such stay exists by reason of the appeal from the order of the federal court denying the application for his writ. That appeal stays the order of the superior court if the petition forming the basis of that order presents a federal question. Hence, the vital issue, and the only issue, before this court is, Was there such federal question presented to that court? This court is now passing upon the present status of the jurisdiction of a superior court of the state as to a particular cause. The question of jurisdiction is squarely presented, and must be met and decided regardless of the particular matters of law or fact which are necessary to be considered in its determination.
The petition for the writ of habeas corpus discloses that the petitioner, Ebanks, was tried and convicted upon a charge of murder not set forth by indictment of a grand jury, but by an information of the district attorney. It is now insisted that such a procedure does not constitute due process of law. The issue raised by this contention presents a question for the decision of the federal courts, and these courts have so recognized it in the past. Hurtado v. California, 110 H. S. 516, exhaustively discusses the merits of the contention, and holds against the present claims of Ebanks. But, nevertheless, a federal question is presented, and the fact that, judging by the past, it surely will be decided by the supreme court of the United States against him, in no way precludes the issue of its federal character. The Hurtado ease has since been followed in McNulty v. California, 149 U. S. 648, and also in the recent case of Durrant. The petition for the writ in the Durrant case is laid upon the same lines as that in the present case, in all substantial matters; and, if the Durrant petition had stated no federal question, the appeal from the order refusing the writ of habeas corpus would have been dismissed by the supreme court of the United States. Yet such action was not taken, but, on the contrary, the appeal *131was heard and decided upon the merits, the court thereby recognizing the presence of a federal question before it.
There is no other federal question raised by the Ebanks petition, save the one to which allusion has here been made. Indeed, in the ordinary trial of a defendant charged with murder based upon an information by the district attorney, it is not apparent that any other federal question could he raised. Hence, it appears that the legal difficulties and delays which have arisen in the Ebanks ease by reason of the habeas corpus proceedings inaugurated before the federal courts may be largely avoided in future cases by proceeding against defendants charged with the crime of murder upon indictment by the grand jury, rather than by information filed by the district attorney. If such course is adopted by prosecuting officers, I do not believe the present unfortunate condition as to the judgments of state courts in capital cases will ever be repeated.
By reason of the foregoing views I agree with the other members of the court in holding that the acting warden, Edgar, should he discharged from custody.